Queenscorp (Mona Road) Inc. v. Mississauga (City), 2022 CanLII 25748

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 31, 2022 CASE NO(S).: PL170371

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Queenscorp (Mona Road) Inc. Subject: Request to amend the Official Plan - Failure of the City of Mississauga to adopt the requested amendment Existing Designation: Residential Low Density I Proposed Designated: Residential Medium Density Purpose: To permit the development of 17 townhouses dwellings and 1 detached dwelling Property Address/Description: 1142 Mona Road Municipality: City of Mississauga Approval Authority File No.: OPA/OZ 16/006 OLT Case No.: PL170371 OLT File No.: PL170371 OLT Case Name: Queenscorp (Mona Road) Inc. v. Mississauga (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Queenscorp (Mona Road) Inc. Subject: Application to amend Zoning By-law No.0225-2007 - Neglect of the city of Mississauga to make a decision Existing Zoning: R3-1 Proposed Zoning: RM6 - site specific standards Purpose: To permit the development of 17 townhouses dwellings and 1 detached dwelling Property Address/Description: 1142 Mona Road Municipality: City of Mississauga Municipality File No.: OZ-16/006 OLT Case No.: PL170371 OLT File No.: PL170372

PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Queenscorp (Mona Road) Inc. Request for: An Order Awarding Costs Costs Sought Against: Region of Peel, Michelle Walmsley

PROCEEDING COMMENCED UNDER section 20 of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Region of Peel Request for: An Order Awarding Costs Costs Sought Against: Queenscorp (Mona Road) Inc.

Heard: In writing

APPEARANCES:

Parties	Counsel
Queenscorp (Mona Road) Inc.	I. Kagan
Region of Peel	R. Godley
Michelle Walmsley	Self-represented

DECISION DELIVERED BY SUSAN de AVELLAR SCHILLER AND ORDER OF THE TRIBUNAL

1This decision deals with a request for costs fixed at $19,734.79 brought by Queenscorp (Mona Road) Inc. (“Queenscorp”) against the Region of Peel (“Region”), and a request for costs fixed at $30,854.98 brought by Queenscorp against Michelle Walmsley. This decision also deals with a cross request for costs from the Region against Queenscorp for $11,337.30 for its defense against the Queenscorp request for costs.

2Costs being sought by Queenscorp arise from the hearing dealing with Queenscorp’s appeals of its proposed Official Plan Amendment and associated Zoning By-law Amendment to enable implementation of a development proposal in the City of Mississauga (“City”), a constituent municipality within the Region. The appeals were based on the failure of the City to make a decision on the applications.

3Both the Region and Ms. Walmsley were added as Parties to the proceedings, appearing in opposition to the Queenscorp proposals. Other Parties also appeared at the hearing of the merits but did not participate in this Motion for Costs.

4In its Decision from the hearing of the merits, the Tribunal allowed the appeals by Queenscorp with the Tribunal’s final Order being withheld until certain filings were made.

5The Statutory Powers Procedure Act (“SPPA”) requires submissions for a costs order to be made in writing. The exception is if a party satisfies the Tribunal that to do so is likely to cause the party significant prejudice. The Tribunal is satisfied that there is no significant prejudice to any party to proceed with this Motion for Costs in writing.

AUTHORITY TO AWARD COSTS

6The Tribunal’s authority to award costs comes from the SPPA, the Ontario Land Tribunal Act (“OLTA”) and the Tribunal’s Rules of Practice and Procedure (“Rules”).

7Costs do not follow cause at the Tribunal. The fact that a party has lost does not mean that costs will necessarily be awarded against it. Costs are awarded based on behaviour. They are not automatic.

Statutory Powers Procedure Act

8In s. 17.1(2), the SPPA sets out the two core requirements for a Tribunal to award costs.

9The first requirement is that an award of costs may only be made where the conduct or course of conduct of a party has been “unreasonable, frivolous or vexatious or a party has acted in bad faith”.

10The second requirement is that the Tribunal has made rules regarding costs. At s.17.1(4)(b), the SPPA requires the Tribunal to identify the circumstances in which costs may be ordered.

Ontario Land Tribunal Act

11The OLTA takes a similar approach in providing a statutory basis for a request for costs.

12Section 20 provides:

The Tribunal may, subject to any other Act, fix the costs of and incidental to any proceeding, and order a party to the proceeding to pay the costs, in accordance with the rules.

Tribunal Rules

13Rule 23 of the Tribunal’s Rules sets out the procedure for a costs motion and the sort of conduct that might attract a costs award.

14Rule 23.9 has the same limitation that is set out in the SPPA. It provides that the Tribunal may only order costs against a party if the conduct or course of conduct of a party has been “unreasonable, frivolous or vexatious or a party has acted in bad faith”.

15Rule 23.9 goes on to give some examples of behaviour. The examples are illustrative, not exhaustive. The Tribunal considers the examples most applicable to this Motion for Costs to be items c), d) and e) of Rule 23.9:

c. failing to act in a timely manner or failing to comply with a procedural order or direction of the Tribunal where the result is undue prejudice or delay;

d. a course of conduct necessitating unnecessary adjournments or delays or failing to prepare adequately for hearing events;

e. failing to present evidence, continuing to deal with issues, asking questions or taking steps that the Tribunal has determined to be improper;

16Rule 23.10 deals with the amount of a costs award:

The Tribunal may deny or grant the application for costs or award a different amount and fix the costs of and incidental to the proceeding and direct payment be made by a certain date by order.

17Rule 23.11 speaks to interest on a costs award:

Awards of costs may bear interest in the same manner as those made under section 129 of the Courts of Justice Act, R.S.O.1990, c. C.43.

18The Tribunal is not required to order costs when any of the examples of inappropriate conduct occur, or when other behaviour occurs that meets the general overall requirement that the conduct or course of conduct is clearly unreasonable, frivolous, vexatious or in bad faith. The seriousness of the conduct and its impact on the reasonable ability of the Tribunal to ensure a fair and efficient hearing is considered by the Tribunal when a request for costs is made.

ISSUES, ANALYSIS AND FINDINGS

19The hearing of the merits was governed by a procedural order that contained an issues list. The Tribunal had been clear that a party who placed an issue on the Issues List must be prepared to call evidence in support of that issue.

20The reason for the requirement is simple: parties opposite must know the case they must meet. For Tribunal proceedings, that often means filing lists of expert witnesses to be called and then filing expert statements of those witnesses to address the anticipated evidence associated with an issue on the Issues List. Phrased another way, these procedural order requirements are set to ensure a fair and balanced hearing for all Parties.

21In the request for costs against both Ms. Walmsley and against the Region, issues these Parties retained on the Issues List without calling evidence in support of the issues are at the core of the reasons for the request for costs.

Costs Sought Against Michelle Walmsley

22The Tribunal begins the analysis with the costs that are being sought against Ms. Walmsley.

23Ms. Walmsley was self-represented in the hearing of the merits. She admitted that she had little or no experience with Tribunal hearings and procedures. To support a fair hearing, the Tribunal explained procedures and the obligations of a Party to Ms. Walmsley while being careful not to provide or suggest strategic advice regarding her case.

24The Tribunal understands that several others associated with the hearing gave Ms. Walmsley advice, which may have included strategic advice on her decision to continue her case in opposition to Queenscorp.

25The core of the support for the request for costs against Ms. Walmsley is that she did not accept the advice to drop certain matters as issues and refocus or abandon her case. Ms. Walmsley declined to drop two of the issues she maintained on the Issues List, both dealing with hydrology. While maintaining the two issues regarding hydrology, Ms. Walmsley had filed a witness list that included a hydrologist to deal with these two issues.

26Queenscorp prepared to call witnesses and filed expert witness statements to deal with these hydrology issues.

27Ms. Walmsley did not file a witness statement from a hydrologist and did not call a hydrologist in support of her hydrology issues.

28On its face, this conduct might be considered to be clearly unreasonable, frivolous and vexatious and might then attract an award of costs. The Tribunal is not persuaded that it meets these requirements.

29First, the Tribunal notes that, no matter how well-informed or well-intentioned advice might be, Ms. Walmsley was not required to take it.

30Second, the Tribunal is of the view that Ms. Walmsley made a good faith effort to secure a hydrologist both to testify and to prepare a witness statement to address the two hydrology issues. Ms. Walmsley did not file a witness statement and did not call a witness to testify on these two issues.

31The Tribunal agrees that Ms. Walmsley should have sorted all this out well in advance and dropped the issues from the Issues List if she had no expert to call. The Tribunal disagrees that her intention was entirely one of being clearly unreasonable, frivolous, vexatious or acting in bad faith in this matter. Rather, notwithstanding the many explanations of her responsibilities, the Tribunal concludes that Ms. Walmsley acted in good faith and made her best effort to meet the requirements of the Procedural Order regarding issues on the Issues List.

32While the Tribunal agrees that Ms. Walmsley was occasionally late for the resumption of a hearing day, I am satisfied that she made a reasonable effort to arrive on time and very little time was taken in waiting for her arrival.

33With regard to disruption during the hearing, the Tribunal notes that this was the first Tribunal hearing that Ms. Walmsley held the status of a Party. She clearly felt strongly about the applications and apologized quickly when called to order by the Tribunal. Recognizing that this was Ms. Walmsley’s first time as a self-represente party as a formal hearing, the Tribunal is satisfied that relatively little time was taken to deal with the interruptions and the Tribunal puts them down to an enthusiastic party in a robust and contested hearing.

34Having considered the matter, the Tribunal finds that Ms. Walmsley’s course of conduct did not rise to the standard that would attract an award of costs in any amount.

35The Tribunal denies the request for costs against Ms. Walmsley.

Costs Sought Against the Region

36Unlike Ms. Walmsley, the Region was fully represented by counsel and is a Party well-experienced in Tribunal hearings and the requirements of a Procedural Order.

37Like Ms. Walmsley, the Region placed two issues on the Issues List where the Region was the only Party doing so. These were Issue 13, dealing with waste, and Issue 14, dealing with transportation; and, like Ms. Walmsley, the Region filed a witness list indicating that it would call two experts, each to address one of these issues.

38Expert witness statements in support of issues on the Issues List were to be filed approximately 2.5 months after the filing of the witness list.

39With issues remaining on the Issues List and no advice that witnesses listed in the Region’s witness list would not be called, Queenscorp prepared and filed witness statements to respond to the issues.

40The Region did not file any witness statement in support of either of these two issues. Approximately one week after the witness statement filing deadline, the Region advised all Parties that, contrary to its earlier advice, it would not be calling any witnesses but would, instead, rely on witnesses called by the City.

41It was not until a month later that the Region dropped several issues from the Issues List, including Issues 13 and 14 in their entirety.

42Having reversed its position on calling witnesses, and having not filed any witness statements, the Region then attempted to file affidavit evidence addressing matters that could, and should, have been addressed in a timely and fair manner through the filing of witness statements.

43The Tribunal dismisses the suggestion from the Region that this was just an attempt to be helpful to the Tribunal.

44The Tribunal distils the Region’s Response to the Queenscorp Motion to the following core points:

1. The Region is a public body and costs must be paid out of tax dollars.
2. The Region is a commenting agency on development proposals, with particular responsibility for waste, certain environmental matters and certain transportation-related matters. These latter two arising particularly from official plan policies and requirements.
3. The Region was working closely with the City and was relying on the City to call witnesses to deal with environmental matters.
4. The waste and the transportation issues were likely to settle so the Region decided it was unnecessary to file witness statements.
5. Costs against the Region for not filing witness statements for the two issues of waste and transportation that only the Region placed on the Issues List would discourage other Parties from engaging in collaboration or settlement of issues.

45The Tribunal acknowledges that the Region is a public body with tax-based revenues. These characteristics neither excuse a course of conduct that is clearly unreasonable, frivolous, vexatious or in bad faith nor do they accord the Region with some sort of special status of immunity to the standard to adhere to the requirements of the Procedural Order governing a Tribunal proceeding.

46The Tribunal dismisses this line of submissions as being both inappropriate and irrelevant to the issues at hand.

47The Procedural Order is not a suggestion. It is an Order. It is designed and intended to ensure a fair hearing for all Parties. Disregarding the requirements of the Procedural Order contributes to an inherent unfairness, and costs, for those Parties who adhere to these requirements. The Tribunal is not persuaded that an experienced party with experienced Counsel should be able to disregard the clear requirements of the Procedural Order with no notice to parties opposite and no request for leave of the Tribunal to do so.

48The Tribunal takes no issue with the Region working collaboratively with the City. Collaboration between parties of like or similar interest is encouraged. Nothing in the Procedural Order militated against or discouraged such collaboration. Parties in hearings before the Tribunal engage regularly in collaboration and explore settlement possibilities. Unlike the Region in this matter, they do so while respecting procedural requirements.

49The course of conduct that attracts an award of costs is solely the fact that the Region was deliberate in failing to meet the requirements of the Procedural Order and deliberate in failing to act in a timely and fair fashion.

50Suggesting that the reason the Region ignored the requirements of the Procedural Order regarding witness statements because the Region’s two issues of waste and transportation were likely to settle is simply disingenuous.

51On the issue of waste, the Applicants filed an updated Functional Servicing Report in response to staff comments several months prior to the start of the hearing. The Region deemed the report to be satisfactory but declined to confirm this with Queenscorp. The Region then maintained this issue on the Issues List leaving the reasonable person to conclude that the issue regarding waste had not been met satisfactorily when apparently it had been.

52On transportation, as noted above, the Region did not file a witness statement. More than a month after the filing of witness statements was to have occurred, the Region sought to introduce affidavit evidence on this issue.

53Having analyzed all the submissions, the Tribunal finds that the Region engaged in a course of conduct that was clearly unreasonable, frivolous, and vexatious.

54In considering the appropriate amount of the award of costs against the Region, the Tribunal exercises its discretion pursuant to Tribunal Rule 23.10 and fixes the amount of the costs award at $5,000.00.

55The Tribunal denies the Region’s request for costs of its defense against Queenscorp’s request for costs against the Region.

ORDER

56The Tribunal orders that the request for costs brought by Queenscorp (Mona Road) Inc. against Michelle Walmsley is denied.

57The Tribunal orders that the request for costs by the Region of Peel against Queenscorp (Mona Road) Inc. is denied.

58The Tribunal orders that the request for costs brought by Queenscorp (Mona Road) Inc. against the Region of Peel is allowed in part.

59The Tribunal fixes the costs to Queenscorp (Mona Road) Inc. at $5,000.00 on an all-inclusive basis to be paid by the Region of Peel within 120 days from the issuance date of this Decision.

60The Tribunal orders that post judgment interest shall be payable on the costs ordered from the date payment is due, in accordance with s. 129 of the Courts of Justice Act, R.S.O. 1990. c. C.43, as amended.

“Susan de Avellar Schiller”

Susan de Avellar schiller VICE-CHAIR

Ontario Land Tribunal Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.